Citation Nr: 0801284
Decision Date: 01/11/08 Archive Date: 01/22/08
DOCKET NO. 04-27 000 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to service connection for a back disability.
REPRESENTATION
Appellant represented by: Mark R. Lippman, Attorney at
Law
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
A. Cryan, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1962 to June
1965.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2002 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Muskogee, Oklahoma.
The veteran testified at a video conference hearing before
the undersigned Veterans Law Judge (VLJ) in January 2006.
The Board denied the veteran's claim in May 2006. In May
2007, the veteran's attorney and the VA's General Counsel
filed a joint motion with the United States Court of Appeals
for Veterans Claims (CAVC) to vacate the Board's decision and
remand the case. CAVC granted the motion.
FINDING OF FACT
The veteran does not have a back disability due to disease or
injury in service.
CONCLUSION OF LAW
The veteran does not have a back disability that is the
result of disease or injury incurred in or aggravated by
active military service. 38 U.S.C.A. §§ 1110, 1131, 5107
(West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran claims that he has a back disability related to
an injury incurred in service.
Service medical records (SMRs) dated from June 1962 to June
1965 were associated with the claims file. The records
indicate the veteran injured his shoulder on a parachute jump
in August 1963. The records reflect that the veteran was
seen for complaints of sore throat, fever and back pain in
December 1964. He was diagnosed with pharyngitis. He was
prescribed pain medication and heat therapy. A few days
later the veteran was noted to have no symptoms other than
back pain. He had right paraspinous muscle spasm and
tenderness in the lumbosacral area. A few days later the
veteran was noted to have continued back pain. Examination
revealed no spasms. The veteran was noted to have vomited
twice. The veteran's separation examination dated in May
1965 was negative for any reference to a back disability.
Spine examination was normal. The veteran reported that he
was in good health on his report of medical history dated in
May 1965. He also signed a statement of medical condition
dated in June 1965 and reported that there was no change in
his medical condition since his May 1965 separation
examination.
The veteran's DD Form 214 reflects that the veteran was
awarded the Parachutist Badge. The veteran's service
personnel records also reflect that the veteran participated
in eighteen parachute jumps during the period from December
1962 to March 1965.
Associated with the claims file are private records and
Social Security disability records dated from December 1985
to January 2004 from several private providers, including
Orthopedic Specialists of Tulsa, Inc., Rebound Oklahoma
Physical Therapy and Rehabilitation, M. Duininck, M.D., of
Family Medical Care of Tulsa, Inc.; St. Francis Hospital; D.
Inbody, M.D.; G Hale, D.O., of Tulsa Pain Consultants;
Central States Orthopaedic and Sports Medicine; D Hicks,
M.D., of Central States Orthopedic Specialists, Inc.; D.
Hawkins, M.D., of Tulsa Orthopaedic Associates; Texas Back
Institute; A. Raptou, M.D., and B. Benner, M.D., of
Neurological Surgery Inc. The records reveal that the
veteran was treated for his back throughout the time period
referenced and that he underwent surgery on his back on
several occasions. None of the records includes information
regarding the etiology of the veteran's back disability.
The Board notes that the records from Dr. Inbody indicate
that the veteran underwent a spinal fusion at L5-S1 for
congenital nonunion of the vertebrae in 1968. The records
from Texas Back Institute indicate that the veteran had a
long history of back problems that dated to 1968 when he had
his first surgery, a posterior fusion. None of the records
indicates that the veteran sought treatment for his back
prior to 1968.
The Board further notes that the treatment reports from Tulsa
Orthopeadic Associates reveal that the veteran slipped and
fell striking his coccyx region causing severe pain
throughout his lumbosacral spine and bilateral legs in July
1986. The treatment records from Orthopedic Specialists of
Tulsa, Inc., and Rebound Oklahoma Physical Therapy indicate
that the veteran was rear-ended while sitting at a stop sign
in June 1994. His low back pain was noted to have increased
following the accident.
The Board notes that Dr. Duininck provided a letter dated in
January 1995 in which he reported that the veteran underwent
multiple surgical procedures on his back. He said that
veteran continued to have pain and discomfort and was unable
to work.
Also of record is a lay statement from a fellow serviceman
who served with the veteran, dated in October 2003. He said
he served with the veteran from August 1962 to March 1964.
He reported that there was an incident in service whereby
several paratroopers were injured when they were forced to
jump in winds up to twenty-two knots. He said that the
veteran reported back pain several days after the incident.
He said the veteran was treated with pain pills and sent back
to duty. He opined that the veteran's back problems ensued
following this incident.
Dr. Duininck also provided a letter dated in January 2004 in
which he reported that he had treated the veteran since 1994
for chronic back pain. He said that the veteran reported an
initial injury in service in 1964 when he did a parachute
jump while in the military. He said the veteran underwent
back surgery in 1968, 1985, 1991, 1993, and 1994. Dr.
Duininck reported that the veteran was chronically disabled
due to back pain and that he was on chronic narcotic therapy
with a morphine pump for pain. He concluded that he believed
it was very possible and even likely that the veteran's
chronic back pain injury and subsequent injuries were
directly related to the parachute jumping that the veteran
did while in the military.
The veteran was afforded a VA examination in May 2004. The
examiner noted that the veteran's claims file had been
reviewed. The veteran reported that he injured his back in
service during a parachute jump in 1964. The veteran was
noted to have arrived in an electric scooter but he was able
to walk into the examination room with a wide gait and some
limp. He reported pain in his lower back which was treated
with a morphine pump. X-rays of the lumbosacral spine taken
in April 2004 revealed extensive orthopedic surgery
demonstrated by narrowing of the multiple intervertebral disc
spaces, mild spondylosis, and no acute findings. The
examiner diagnosed the veteran with status-post laminectomy
with fusion of the lumbosacral spine with mild-to-moderate
loss of function due to pain. The examiner noted that the
veteran did not have an injury in service but rather a few
instances of back pain in December 1964. The examiner opined
that the veteran's current lower back condition was less
likely related to the episodes of back pain in service.
Associated with the claims file is a letter from R. Williams,
M.D., dated in June 2004. Dr. Williams reported that he had
an active Orthopedic practice in California from 1956 to
1975. He reported that the veteran had been under care in
his office in 1968. Dr. Williams said that his partner, R.
Freedle, Jr., performed a spinal fusion on the veteran. He
said that at the time of the surgery, it was his opinion that
the veteran's parachute jumping contributed to his disability
and need for surgery.
The veteran was also afforded a VA examination in September
2005. The examiner reported that the claims file had been
reviewed. The veteran again reported that he injured his
back in a parachute jump in service. He reported that he had
a spinal fusion in March 1968. The veteran reported that he
twisted his back while working as a film developer in March
1968. He later denied twisting his back at work and said his
work entailed sitting and watching films. The veteran
reported having undergone five back surgeries. He said he
was put on long-term disability through his private employer
in 1993. He also said he was put on Social Security
disability in 1995 for his back condition. He reported pain
in his back with radiation to his legs. He reported that the
pain was partially controlled with a morphine pump and that
he took Vicodin for breakthrough pain. He reported using a
scooter apparatus to get around but he was able to walk. The
veteran was able to walk into the examining room after he
parked his scooter at the door. He was able to arise and sit
in a chair with some pain. Examination of the lumbar spine
revealed multiple scars, tenderness, and paravertebral spasms
in the lumbar area. X-rays revealed degenerative disc
disease of the lower spine. The examiner diagnosed the
veteran with status post multiple lumbar fusion with
degenerative disc disease of the lumbar spine. The examiner
opined that it was less likely that the veteran's current
spine condition or previous spine condition was caused by
military activities, including parachute jumping. The
examiner said her rationale was that the veteran participated
in ten parachute jumps, none of which was followed by any
hospitalization. The veteran's first surgery was performed
in March 1968 and the veteran reported that he had not seen
any doctors prior to his acute injury at work in March 1968.
The examiner noted there was no ongoing back treatment from
the veteran's discharge in June 1965 until the time of his
surgery in 1968. She said that the veteran denied any motor
vehicle accidents or workers' compensation claims, but she
noted that the veteran did not have any treatment for a back
disability for three years after service, a limited number of
parachute jumps in service, no hospitalization and only minor
treatment for a back condition while in service. She also
said that the veteran's May 1965 separation examination was
negative for any reference to back pain and that the spine
examination was normal.
The veteran testified at a video conference hearing in
January 2006. He reported that he performed eleven or twelve
parachute jumps in service. He testified that he was forced
to make a parachute jump into twenty-two mile winds and that
safe jumping was supposed to be no more than twelve knots.
He said that he did not seek treatment for a few days and
then after a day or so he went and was given medicine. He
said that he had pain in his back since that incident in
service. He testified that he sought treatment for his back
in 1968 when he twisted it at work. He reported that he
self-medicated his back from the period from 1965 until 1968.
He said that in 1968, Dr. Williams and Dr. Freedle said that
his back problems could have resulted from the incident in
service. He reported that he had not injured his back since
service.
The law provides that service connection may be granted for
disability resulting from disease or injury incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West
2002); 38 C.F.R. §§ 3.303, 3.304 (2007).
In the alternative, the chronicity provisions of 38 C.F.R. §
3.303(b) are applicable where evidence, regardless of its
date, shows that a veteran had a chronic condition in
service, or during an applicable presumptive period, and
still has such condition. Such evidence must be medical
unless it relates to a condition as to which under case law
of the United States Court of Appeals for Veterans Claims
(Court) lay observation is competent.
If chronicity is not applicable, service connection may still
be established on the basis of 38 C.F.R. §3.303(b) if the
condition is noted during service or during an applicable
presumptive period, and if competent evidence, either medical
or lay, depending on the circumstances, relates the present
condition to that symptomatology. Savage v. Gober, 10 Vet.
App. 488 (1997).
Generally, service connection requires (1) medical evidence
of a current disability, (2) medical evidence, or in certain
circumstances lay testimony, of in-service incurrence or
aggravation of an injury or disease, and (3) medical evidence
of a nexus between the current disability and the in-service
disease or injury. Pond v. West, 12 Vet. App. 341, 346
(1999); accord Caluza v. Brown, 7 Vet. App. 498 (1995).
The Board notes that the veteran was treated for a back pain
in service in December 1964. The service medical records and
service personnel records do not include any documentation of
a back injury related to parachute jumps. In fact, the only
reference to an injury related to a parachute jump relates to
a shoulder injury. Nevertheless, there were several
instances of back pain noted, and the veteran, along with an
individual who knew him in service, reported that the veteran
indeed hurt his back during a parachute jump.
The evidence of record reveals that the veteran underwent a
spinal fusion in 1968, three years after service. The
veteran reported that he self-medicated his back following
service. There were no treatment records during the period
from 1965 until the veteran underwent surgery in 1968. While
Dr. Duininck and Dr. Williams provided opinions in which they
said that the veteran's parachute jumping contributed to his
disability and need for surgery, these opinions appear to
have been based on history provided by the veteran. None of
the treatment reports of record indicate that the veteran's
back disability began in service. Neither Dr. Duininck nor
Dr. Williams reviewed the veteran's claims file. Both VA
examiners (May 2004 and September 2005) opined, after
reviewing the claims file, that the veteran's back disability
was not likely related to his military service. The May 2004
examiner noted that the veteran's spine examination at his
discharge from service was normal. The September 2005
examiner specifically based her opinion on the fact that the
veteran had no treatment records for the time period from
1965 to 1968, a limited number of parachute jumps in service,
no hospitalization for his back while in service, and only
minor treatment for back pain while in service. She also
noted that the veteran's separation examination was negative
for any reference to a back disability and that the spine
examination obtained at that time was normal.
The Board finds the veteran's and his fellow serviceman
claims regarding the veteran's continued back symptoms in
service are not credible. See Washington v. Nicholson, 19
Vet. App. 362 (2005); see also Cartright v. Derwinski, 2 Vet.
App. 24, 25 (1991) (holding that interest in the outcome of a
proceeding may affect the credibility of testimony). It
appears that the veteran has claimed that he was seen for
complaints of back pain in service following a parachute jump
in service and has had back problems since that time. The
contemporaneous evidence does not support this claim. See
Madden v. Gober, 125 F.3d 1477, 1480-81 (Fed. Cir. 1997) (A
claimant's assertions can be contradicted by his
contemporaneous medical histories and complaints.)
As noted above the only evidence of treatment in service
related to a parachute jump came in August 1963 and pertained
to treatment for the veteran's shoulder. While the veteran
was seen for back pain several times in December 1964 none of
these visits document that the veteran was injured in a
parachute jump. The veteran specifically reported that he
was in good health on his report of medical history prepared
in conjunction with his separation examination dated in May
1965, the spine examination was normal at that time, and he
signed a statement indicating that there was no change in his
medical condition as of June 1965. This contradicts the
veteran's statement that he had continued problems after the
jump in which in hurt his back.
Furthermore, the veteran initially reported an injury at work
in 1968 at the time of his September 2005 VA examination. He
later denied twisting his back at work. He then testified
that he sought treatment for his back in 1968 after he
twisted his back at work. The veteran also denied any motor
vehicle accidents or injuries at work at the time of the
September 2005 VA examination. The medical evidence as
reported above indicates that the veteran fell and injured
his back in July 1986 after he slipped and fell striking his
coccyx region causing severe pain throughout his lumbosacral
spine and that the veteran was rear-ended while sitting at a
stop sign in June 1994. Based on this inconsistent history
and the evidence contained in the claims file, the Board
finds the veteran's lay evidence regarding continuity of
symptoms to lack probative value.
Regarding the other lay evidence of record, the Board notes
that the fellow service man indicated that there was an
incident in service whereby several paratroopers were injured
when they were forced to jump in winds up to twenty-two
knots. He said that the veteran reported back pain several
days after the incident. He said the veteran was treated
with pain pills and sent back to duty. He opined that the
veteran's back problems ensued following this incident. He
did not indicate that the veteran was injured in the jump he
merely reported that "some paratroopers were injured" and a
few days later the veteran reported back pain and received
treatment for his back. As noted above, the service medical
records and service personnel records are silent for any
reference to treatment for a back disability following a
specific parachute jump. While the veteran may have indeed
felt some back pain after a parachute jump, and although the
service records document pain, the salient point to be made
is that the evidence does not support the veteran's claim of
continuing problems. As noted above, even by his own
admission as separation, he did not have any continuing back
problem. Such evidence was significant in the VA examiners'
opinions. Consequently, while the veteran may have felt pain
just as he and his fellow serviceman described, his statement
regarding continuity of symptoms is not supported by the
remaining record. Because of the various inconsistencies in
his statements made over the years, and because the record
contradicts his statement of continuity, the Board finds his
statement of continuity following any in-service injury to be
incredible.
The veteran's statements and the statement provided by a
fellow serviceman are not sufficient to establish that the
veteran's current back disability resulted from an injury in
service. This is so because neither the veteran nor his
fellow serviceman has the medical expertise to provide
opinions as to etiological relationships. See Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).
The evidence of record, taken as a whole, does not reflect
that the veteran's current back disability is related to
service. The veteran was treated for complaints of back pain
on three occasions in service. There is no record of any
injury to the veteran's back in service, but even if an
injury following a parachute jump is conceded, there was no
continuity of symptoms thereafter. At separation, his spine
was normal and he was without complaint. He was not treated
again until he underwent a spinal fusion in 1968, three years
after he separated from service. The veteran has at times
reported that he twisted his back at work necessitating his
back surgery in 1968. The veteran's private physicians have
attributed his back disability to an injury while parachute
jumping in service. Nevertheless, both VA examiners opined
that the veteran's back disability was less than likely
related to military service. The absence of any problem
requiring more than outpatient treatment when the veteran
undertook any parachute jump or separated from service or for
several years thereafter, was the basis of the VA examiners'
opinions. This is of greater evidentiary weight than the
private practitioners' suggestions that the veteran's back
disability might be attributed to military service, which
opinions were provided without review of the medical record,
particularly the service records. As noted above, the lack
of continuity of symptoms from the time the veteran
experienced back pain in service until he underwent back
surgery three years later is likewise significant.
Consequently, the Board gives greater weight to the VA
opinions and finds that the preponderance of the evidence is
against the veteran's claim for service connection.
The Board has considered the doctrine of reasonable doubt,
but finds that the record does not provide an approximate
balance of negative and positive evidence on the merits. The
Board is unable to identify a reasonable basis for granting
service connection for a back disability. Gilbert v.
Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. §
5107(b) (West 2002); 38 C.F.R. § 3.102 (2007).
In deciding the issue in this case, the Board has considered
the applicability of the Veterans Claims Assistance Act of
2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West 2002). The Board has also considered the
implementing regulations. 38 C.F.R. §§ 3.102, 3.156(a),
3.159 and 3.326(a).
Under 38 U.S.C.A. § 5103, the Secretary is required to
provide certain notices when in receipt of a complete or
substantially complete application. The purpose of the
notice is to advise the claimant of any information, or any
medical or lay evidence not previously provided to the
Secretary that is necessary to substantiate the claims. The
Secretary is to advise the claimant of the information and
evidence that is to be provided by the claimant and that
which is to be provided by the Secretary. 38 U.S.C.A. §
5103(a) (West 2002). In addition, 38 C.F.R. § 3.159(b),
details the procedures by which VA will carry out its duty to
notify.
The veteran's claim was submitted in March 2002. The RO
wrote to the veteran in April 2002, April 2003, January 2004,
and July 2004 and informed him of the evidence he needed to
substantiate his claim of service connection. He was
informed of the elements to satisfy in order to establish
service connection. He was advised to submit any evidence he
had to show that he had a current disability and to identify
sources of evidence/information that he wanted the RO to
obtain on his behalf.
In reviewing the requirements regarding notice found at 38
U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b), the Board cannot
find any absence of notice in this case. As reviewed above,
the veteran has been provided notice regarding the type of
evidence needed to substantiate his claims, what was required
of him and what VA would do to assist. He was told to submit
any pertinent evidence he had. In summary, the Board finds
that no additional notice is required under the provisions of
38 U.S.C.A. § 5103 as enacted by the VCAA and 38 C.F.R. §
3.159(b). See Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). Additionally, while the veteran was not told of the
criteria used to award disability ratings or the criteria for
assigning an effective date, see Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v.
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), no such issue is
now before the Board. Therefore, a remand of the claim in
order to address rating or effective date issues is not
necessary.
Regarding VA's duty to assist under 38 U.S.C.A. § 5103A and
38 C.F.R § 3.159(c)(1)-(3), the Board notes that the RO has
obtained service medical records, and private treatment
reports. The veteran was afforded several VA examinations.
The veteran has not alleged that there is any outstanding
evidence that would support his contention that service
connection for a back disability should be granted.
ORDER
Entitlement to service connection for a back disability is
denied.
________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs